Beavers v. State, 4 Div. 452

• Decision Date: 28 October 1986
• Docket Number: 4 Div. 452
• Citation: 497 So.2d 612
• Parties: John BEAVERS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 612

497 So.2d 612

John BEAVERS v. STATE.

4 Div. 452.

Court of Criminal Appeals of Alabama.

Oct. 28, 1986.

Judy A. Newcomb, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, John Beavers, was convicted of the offense of burglary in the third degree in violation of § 13A-7-7, Code of Alabama (1975). The appellant was sentenced to 30 years in the State penitentiary pursuant to the Habitual Offender Act.

Ricky Bentis, an admitted accomplice, testified that he and the appellant devised and executed a plan to burglarize the home of Eston Cook, who was Bentis's employer. Bentis testified that they made their plans according to Cook's practice of attending church every Sunday; however, Cook did not go to church on the Sunday in question. Therefore, in order to lure him away from his home, they threw a brick through the window at his place of business, and then Bentis telephoned the police and told the dispatcher about the window being broken; he gave the name of "Steve Perry" and a false address. They listened to the police dispatcher in order to know when Cook was contacted, whereupon they telephoned his residence and found that he was still at home. They waited until Cook and his wife departed and then Bentis drove Beavers, the appellant, to a location close to the house, let him out, and then drove around for a while. Bentis testified that when Beavers got back into the car, he noticed that the garage was open and that the appellant was carrying a money bag. He claimed that Beavers told him that he had gone through the garage and kicked in the kitchen door.

Cook testified that on Sunday night the police called him and told him that a window at his place of business had been broken, and that just before he left, he received a second call in which the caller simply hung up. Upon his return, Cook found the garage door partially open, the kitchen door kicked in, and a money bag missing. Cook further testified that he had seen the appellant at work looking for Bentis prior to the burglary.

Carol Stewart, a police dispatcher, testified she took a telephone call reporting a brick being thrown through the window of Cook's business on the night in question. She then filled out a complaint card, entered it on the computer, and sent it to the records department. At trial, she identified a copy of the recording of the telephone call as containing her voice and further testified that it was accurate as to the conversation that occurred. Five witnesses identified the the voice on the tape reporting the broken window and giving the name Steve Perry, and identified it as the voice of the appellant.

I.

The appellant argues that the trial court erred in denying his motion to exclude the testimony of the accomplice based on the failure of the State to present corroborating evidence. The appellant cites Harris v. State, 420 So.2d 812 (Ala.Cr.App.1982), for the statement of the law in Alabama regarding the corroboration of accomplice testimony:

"The formula applied to the corroboration statute, Alabama Code § 12-21-222 (1975), requires that the evidence of the accomplice must first be eliminated and then, if upon review of all the other evidence before the trial court at the time of the motion to exclude, there is found to be sufficient incriminating evidence which would tend to connect the accused with the crime, sufficient corroboration exists. Ware v. State, 409 So.2d 886 (Ala.Cr.App.1981), cert. denied, 409 So.2d 893 (Ala.1982); Mills v. State, 408 So.2d 187 (Ala.Cr.Ap.1981); McCoy [v. State, 397 So.2d 577 (Ala.Cr.App.), cert. denied, 397 So.2d 589 (Ala.1981) ], supra, Staton v. State, 397 So.2d 227 (Ala.Cr.App.), cert. denied, 397 So.2d 232 (Ala.1981)."

Furthermore, the evidence must do more than raise a suspicion of guilt and must be inconsistent with the innocence of the accused in order to adequately corroborate accomplice testimony. Harris v. State, 420 So.2d 812 (Ala.Cr.App.1982). However, this court in Harris v. State, supra, also indicated that the evidence need not be strong or sufficient of itself to support a conviction; rather it must tend to connect the accused with the offense.

" 'Corroborate' means to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness had testified, but to strengthen the probative, criminating force of his testimony. Andrews v. State, 370 So.2d 320 (Ala.Cr.App.1979), cert. denied, 370 So.2d 323 (Ala.1979). It is not necessary that such evidence be direct and conclusive; circumstantial evidence from which the guilt of the defendant can be reasonably inferred is sufficient. Merriweather v. State, 364 So.2d 374 (Ala.Cr.App.1978), cert. denied, 364 So.2d 377 (Ala.1978). McConnell v. State, 429 So.2d 662, 666 (Ala.Cr.App.1983). Thus, the weakness of the corroborating evidence, in and of itself, does not preclude a finding that such evidence tends to connect the accused with the commission of the crime. Where such a finding is made, the weakness and inconclusiveness, vel non, of the corroborating evidence is determined by the jury. Palms v. State, 431 So.2d 1373, 1376 (Ala.Cr.App.1983)."

In the present case, the State submits that corroborative evidence exists in that the appellant was seen prior to the burglary looking for the accomplice; five witnesses testified that it was the appellant's voice which was on the recorded telephone call made to the police and which gave the name Steve Perry and reported a brick being thrown through the window of Cook's business; and, the appellant threatened "to get" Bentis after Bentis pleaded guilty. Although none of the above evidence is sufficient to sustain a conviction in and of itself, its cumulative effect tends to connect the accused with the crime of burglary and, thus, to corroborate the testimony of the accomplice.

II.

The appellant submits that it was reversible error for the trial court to admit the tape recording made by the police department of the report of the brick being thrown through the window of Cook's business. Specifically, the appellant argues that the State failed to establish a proper predicate for the admission of a sound recording under the guidelines of Voudrie v. State, 387 So.2d 248 (Ala.Cr.App.), cert. denied, 387 So.2d 256 (Ala.1980). Under Voudrie, the rules for testing the admissibility of sound recordings have been outlined as follows:

" '(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.' 58 A.L.R.2d at 1027-28." Id. at 256.

The record indicates that the State showed that there was a system at the police station which operated 24 hours a day and made a tape recording of all incoming calls. Carol Stewart, who was working as dispatcher on the night in question, testified that the tape was on and working on that particular evening. The Dothan Police Department's Staff Services Bureau Commander testified that the taping system was run automatically by computer with an automatic fail alert which switches to another system if something goes wrong. He testified that, in this way, this machine is provided with an automatic accuracy check on itself. As to the recorder on which the duplicate tape was made, an investigator with the Houston County Sheriff's Department testified that the recorder is tested each time it is used and that on this occasion, he tested the recorder to make certain that it was working.

The operators in the making of both tapes were competent, as the recording system at the police station is automated and the recorder on which the duplicate was made was operated by the investigator who testified that he had used the recorder daily since January 16, 1984, in his duties as an investigator.

The authenticity and correctness of the original recording was testified to by Carol Stewart, who was a party to the conversation on the tape; she also testified as to the authenticity and correctness of the duplicate recording. Other witnesses who had heard both the original and duplicate recordings testified that they were the same.

The State further submits that there was no alteration of the tape. Carol Stewart testified as to its accuracy in presenting the conversation, and Michael Cedor, who was in charge of records, testified that the sound and L.E.D. readout of the tape machine showed no alteration.

Furthermore, the State showed that the tape was placed in a cabinet in a portion of the communications center to which only Michael Cedor and the senior dispatchers had access. The duplicate tape was kept by Investigator Donald Valenza, who testified that he kept it in his exclusive custody and control.

The speakers were identified; Carol Stewart identified her own voice and five witnesses identified the voice of the appellant.

It is clear that the State satisfied its burden by establishing a proper predicate for the admission of the tape under Voudrie v. State, supra. Therefore, it was within the sound discretion of the trial court to admit the tape recording into evidence. Moulds v. State, 426 So.2d 942 (Ala.Cr.App.1982).

Furthermore, because this tape was made as part of the police department's ordinary daily business, it was admissible as a business record under § 12-21-43, Code of Alabama (1975), which states:

"Any writing or record, whether the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction or...